On Monday the Federal Court brought down its decision in the Croker Island case recognised native title rights over the sea and the sea-bed around Croker Island.
There were two elements to the decision which flew in the face of the usual approach of the courts in resolving disputes.
The first was the nature of the outcome. Typically, courts make black and white decisions (no pun intended). It is all or nothing. In this case the court ruled that the native title holders did not get everything. They got a right to traverse the sea and to take its fruits. But those rights were not exclusive. Existing rights under fishing licences under territory and Commonwealth legislation could still be exercised. The courts do not like these sorts of decisions. There reason is that if you give a little bit to each party, they inevitably fight about it and have to come back to the court. Far better, they used to think, to give one party everything so there is no return bout.
The other unusual element to the case was that the court was not obliged to follow the usual rules about evidence. The Native Title Act provides that the court can be quite relaxed about what evidence it receives and can later give appropriate weight to each piece of evidence according to how close to the course it was.
The usual rule is that only direct evidence is admissible. The witness must only give evidence about what he or she has seen or heard personally. In native-title cases, evidence about what a relative told you or about belief in something rather than direct experience of it is admissible. Reasonably enough, the judge must give greater reliance on direct evidence, especially if it contradicts indirect evidence. But at least the indirect evidence is admissible and in the absence of anything else will form the basis of a conclusion.
So we do not have a position of one lawyer getting evidence excluded on a technicality and the court ruling the other way by default.
The two elements bring the courts closer to real life than is usual. In life we always look at whatever evidence is available to draw conclusions, even if it is Aunt Sally reminding us of Uncle George’s notorious kleptomania. All we do is temper it with other evidence and knowledge of Aunt Sally’s propensity to mendacity and viciousness. In real life, we often seek compromises to conflicts, rather than solving them by all or nothing awards.
In Monday’s judgment, Justice Howard Olney, was dealing with rights in relation to the sea. So it was more open to him to find a compromise position that respected several different sorts of rights. There is a long history of mulitple uses of the sea and a long history of respecting multiple rights of passage over it. No-one “”owns” the sea. And until recent concepts of sustainability and experience of unsustainability arose, it was always assumed that many people could exploits the fruits of the sea and exercise passage over it without doing any damage to it.
Not so the land. Rights of passage across it; rights to build on it; rights to graze on it; sell it; mortgage it and so on were black-and-white matters. You could “own the land”. Unlike the sea, you could put a fence around the chunk of land you own and shut others out of it.
The common law has long recognised the right free right of passage across the sea as a presumption. In the case of land, the presumption is for exclusive possession unless someone have a proven, documented grant of a right of passage, and that is usually restricted to a corridor in the parcel of land, not over the whole of it.
It is a pity that Justice Olney’s approach to rights over the sea and the sea-bed were not applied in disputes over land. For, in truth, rights over the land can be similarly shared as rights over the sea. People who occupy the land can have varying rights and degrees of control over it.
The trouble is, people with pastoral leases have often imagined that they “”own” “”farms”. Prime Minister John Howard, you might note, often (misleadingly) refers to farmers when talking about land rights. He rarely uses the word “”grazier”. The word farming conjures up visions of digging in, of cultivating, of needing exclusive possession. The word grazing, on the other had, conjures up images of animals wandering taking whatever happens to grow on the land without the need for permanence or exclusivity. You could graze without owning.
But the activity of grazing is a bit like the activity of fishing. There is a transitory movement over the land or sea, without the need for exclusivity. The fruits (grass or fish) can be taken without the need to possess.
The Wik decision about pastoral leases and the Croker Island cases are almost identical. Both said new rights like the right to graze and the right to fish take precedence over earlier native rights, but that native rights still exist and where they are not inconsistent with the new grants can and should be enforced.
That is the common-law position. It is the same on the sea as on the land.
There should be no need for the Wik legislation. Those (mainly whitefellas) who have pastoral leases in land subject to the Wik decision can keep grazing as they always have done and those (mainly whitefellas) who have fishing rights over seas subject to the Croker Island case can keep fishing. The only difference is that they have to let blackfellas come on to the land and sea to exercise the activities that they have done for generations: the visiting of sacred sights and the taking of the fruits of land and sea in ways they always have (which would exclude cropping or trawling with modern boats).
I suspect there will be no especial hue and cry over the Croker Island case. Commercial fishing people will accept that Aboriginal and Torres Strait Islanders will also be able to traverse the seas and fishing in their traditional ways. Yet there has been enormous hue and cry over the Wik decision which ruled exactly the same thing over land.
The difference, of course, is that unlike the white fishermen, the graziers misunderstood their rights. They thought they had exclusive freehold possession when in truth they have a grazing lease to run animals over the land.
Pastoral leaseholders have a right to “”fish” the land, not to put a fence around and keep everyone else off.
It is a pity that so many people in the Wik debate have adopted an all-or-nothing approach and have not see that the land like the sea can bear many rights to traverse and exploit.